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Many parents worry about paying for the children’s medical expenses after divorce. If you have a final decree or custody order there should be provisions that detail how the children’s medical expenses will be split among the parents. Typically, one parent is ordered to maintain or obtain health insurance coverage for the children, the other parent might be ordered to pay all or half of the premium (depending upon the custody and visitation arrangement) and then the parties are ordered to pay 50/50 of the unreimbursed or uninsured medical expenses. Most likely, the parent who receives the bill of the medical expenses is ordered to send the actual bill to the other parent within 30 days of receiving the bill. Then, that parent has 30 days from receipt to reimburse the paying parent for their 50% of the expense. The problem arises in that most parties either do not realize or do not comply with the time limitations in the orders. So, what does that mean? If you have received a medical bill and failed to send it to the other parent within 30 days, does that mean that you have to count your losses on the medical expenses?

The Dallas Fifth District Court of Appeals answered this issue recently on an appeal from a Collin County case in In the Interest of I.O.K., J.C.K., and M.O.K., Children. In that case, the parties were divorced and subsequent to that, the mother filed an enforcement seeking reimbursement of medical expenses on the children’s psychology bills. The father failed to pay. The parties’ agreed decree stated, in part, that the party receiving the medical bill must send “all forms, including explanation of benefits (EOB), receipts, bills, and statements reflecting the uninsured portion of the health-care expenses within 30 days after” the party receives them. The father argued that mother never did this and so he should not have to pay. This is despite the fact that he knew the children were attending sessions with the psychologist and had received the bills in the discovery that the parties completed. The father was even receiving the bills from the insurance company with the EOBs. However, at the final hearing the mother admitted that she never sent the bills directly to father within 30 days of receiving them.

Based upon these facts and the reviewed testimony, the Court of Appeals agreed with father that his obligation to reimburse mother his portion of the unreimbursed medical expenses does not arise until mother complies with the terms of the decree and sends the bills to father within 30 days of receiving them. Mother even admitted this in her testimony. Therefore, the Court of Appeals held that you cannot hold the father responsible for the unreimbursed medical expenses when mother did not comply with her obligation under the decree. Therefore, they reversed the trial court’s ruling and ordered that mother take nothing.

You are a parent who has primary possession of the children and you need financial assistance from the other parent but they are not willing to help out by agreement alone. You realize you are going to have to take additional measures to get anything out of them; more specifically, you visit with an attorney and understand that it is going to take a court order.

Regardless of whether your case is a divorce or suit affecting the parent-child relationship, you will need to include a request for child support within your pleadings. This ensures that you have noticed the other parent that you are seeking this in court and it ensures that you can bring this issue up at the hearing. If your case is just beginning, this issue would be addressed at a temporary orders hearing. You and your attorney will put on evidence of the monthly net resources of the other party. How do you do that if you do not know what the other party is making? Your attorney at Guest & Gray will ensure that the party is noticed and ordered to appear with their financial records so that the judge and/or your attorney can calculate the correct amount of child support. However, if the other party ignores the court order and does not bring their financial records, typically the judge will be agitated with this and start asking the party questions on the stand about their financial information.

Once the monthly net is determined, child support is calculated based upon a percentage amount determined by the number of children involved in the suit as well as other factors. For instance, if you have one child child support would be 20% of the obligor parent’s monthly net resources. If the obligor parent has one other child that they are responsible for (remarries or has another child with another person) lowers the percentage down to 17.5% and then gets lower depending upon the number of additional children outside of your case.

You have a final family order, whether it is an order in suit affecting the parent-child relationship, final decree of divorce, etc., and you would like it modified. You are either the parent receiving child support and you want the amount increased or you are the parent paying child support and you want it decreased. Or, there has been a change that would require the conservatorship or visitation modified. It is not an uncommon question and the Texas Family Code does specify particular deadlines and requirements with respect to filing a modification.

For child support, Texas Family Code Section 156.401 states that final orders can be modified if either (a) there has been a material and substantial change in circumstances for a party or the child after the order was entered; or (b) it has been three years since the order was last entered or modified AND the monthly amount either differs by 20% or $100 from the amount that it should be under the child support guidelines. So, it has been less than three years but something has happened that would require a change in child support then you can seek a modification. For instance, did the parent paying child support get a new job after your orders were rendered and they are now making more money? Or, did the obligor lose their job and they are no longer making any money? Additional instances of material and substantial change in circumstances would also be (a) the obligor parent had another child that they are financially responsible for; (b) health insurance has changed (lost or new premiums); or (c) the children are now living with the obligor parent or another person.

That brings us to modifying orders as to conservatorship and/or possession or access. If you are seeking to modify the parent who has the exclusive right to designate the primary residence of the child in less than one year from the orders being rendered, Texas Family Code Section 156.102 governs. If you do so, you must attach an affidavit to your pleadings and the affidavit must allege specific facts that the child’s present environment may endanger the child’s physical health or significantly impair their emotional development. Not only must these allegations be made, but you also have to prove this. If you do not have this, you will have to wait more than one year to change who has the exclusive right to designate the child’s primary residence. If you are modifying in more than a year, your burden is a material and substantial change in circumstances of a party or the child AND it must be in the best interest of the child. In fact, best interest of the child is the ultimate burden in every family law case.

You are a father who wants to be a good dad and support his child without breaking the bank and not being able to support yourself. You do need financial resources in order to do this and you will probably pay guideline support. Our firm can help you.

How Much Will I Pay in Child Support?

Some fathers fall into the trap of paying above-guideline child support. That is, they agree to pay more than they are required either in amount of child support or they pay support and in addition to that pay for extracurricular, daycare, etc. Texas Family Code 154.125 provides the chart on child support guidelines and it is as follows:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child 20% of Obligor’s Net Resources

2 children 25% of Obligor’s Net Resources

3 children 30% of Obligor’s Net Resources

4 children 35% of Obligor’s Net Resources

5 children 40% of Obligor’s Net Resources

6+ children Not less than the amount for 5 children

If you have additional children besides the one involved in the suit, that is important because the percentages go down as shown below:

1

2

3

4

5

6

7

Number of

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

other

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

children for

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

whom the

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

obligor

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

has a

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

duty of

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

support

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The cap for child support was recently increased on September 1, 2013 from $7500 to $8550. This is the new child support cap for application of the percentages to monthly net resources. Therefore, this is not an increase completely; it only applies to those who have a gross monthly income of approximately between $10,000 and $11,000.00.

Presumably, the application of the child support guidelines to one’s monthly net income is considered to be in the best interest of the child. However, Texas Family Code Section 154.123 states that “the court may order periodic child support payments in the amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.” The problem is, most often this section is used to try and prove that a father should pay above-guideline child support. But, it could still be used to decrease your child support below-guideline child support if, for instance, you are the parent paying all of the travel expenses for possession of or access to the child, if you are paying the child care expenses, etc. Either way, if the court deviates from the child support guidelines, the judge must issue findings of fact and conclusions of law that supports the court’s decision.

It is important that you discuss all payments for the child that are you make monthly, that the other parent makes monthly, and you need to be able to prove that at least your payments are made. For example, carbon copies of checks, bank statements, etc. Too often we have clients who have made cash payments to the other parent and the other parent will not acknowledge those cash payments and there is no way to prove that in court.

How Long Will I Pay Child Support?

Texas Family Code Section 154.001 provides the requirements of how long one must pay child support. Generally, most fathers pay child support until the child emancipates which means they turn 18 or graduate high school, whichever occurs later. Therefore, if your child is 18 but still enrolled in high school, then you can be ordered to continue paying support until graduation month. However, if you have a child who is disabled, you could potentially pay support for as long as that disability persists.

What about Retroactive Child Support?

It is not uncommon that we see cases where the parent seeking support is also asking for retroactive child support. This means that you are not only going to pay child support but you are also going to have an additional lump sum amount that you will be paying on. Retroactive child support is awarded when you have a case where the child is a little bit older and paternity has never been established. It can also apply if you have final orders, marry or remarry the mother of the child, and then subsequently separate. The same guidelines apply as when calculating regular support so they would take 20% of your monthly net and calculate that back as far as 4 years. Sometimes, considering factors within the Texas Family Code, the court can order you to pay back to birth. With an older child, you can understand how problematic and expensive that can become.

What is Cash Medical Support?

If private health insurance is not available to either parent for the child, then the obligor parent shall be required to pay cash medical support. Reason being, the child will be enrolled on a government assistance medical program such as Medicaid. Therefore, the Texas Attorney General’s office then develops an interest in your case because it then becomes an issue of money owed to the government for the assistance the child is receiving. Texas Family Code Section 154.182 provides guidance as to amount and states that in addition to the guideline child support, this amount “is not to exceed” 9% of your annual resources. The orders will state that you are paying this amount “as additional child support” but that amount will be withheld by the Attorney General’s office when you pay your monthly child support.

The orders will also state that you can cease paying cash medical support if you do a series of options, including if you obtain private health insurance for the child. A word of caution: if you do obtain private health insurance after final orders have been rendered ordering your cash medical support, it is highly suggested that you do not cease paying the cash medical. Rather, you need to notify the Attorney General’s office of the private health insurance and request a review meeting.

If private health insurance is available to the parent not ordered to pay child support, most likely you will be ordered to pay child support in addition to cash medical support which will be the amount of the health insurance premium on the child.

It is important that if you have private health insurance available through your employment that you provide said insurance for the child. Many fathers are concerned that their employer will wait until open enrollment to allow coverage for your child. However, if you obtain a court order and that order is sent to your employer, your employer must enroll the child by the date that you were ordered to provide the health insurance. Therefore, you could avoid payment of any cash medical payment altogether. Also, another added bonus, in calculating your monthly child support obligation, payment of a health insurance premium is taken into consideration.

What Should You Do?

I have helped many clients with this issue and I can help you as well. Whether you are dealing with a case in which your child support is being established for the first time (with a young or older child) or a modification in which your child support is being increased, we are here to guide you throughout the process. Guest & Gray has the family law experience that you need. We have offices in Forney, Rockwall, and Kaufman. Call us today to schedule your appointment.